My article on Avvo is now available

During the spring and summer I wrote an article on ethical issues related to joining Avvo Legal Services.  I started writing the article soon after Avvo announced the new service, and finished it before the recent ethics opinions from Ohio, South Carolina, and Pennsylvania.  Georgetown agreed to publish the original article, but because it took them a long time to get around to it I had the chance to update the draft a little bit based on the recent opinions.  Now the article is finally available.  You can go to the Georgetown website and read it or download it here. 

Utah Supreme Court dismisses professional responsibility concerns over case in which plaintiff and defendant were the same person

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms. Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant was (were?) represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

District of Columbia Bar new opinions on social media use

The Legal Ethics Committee of the District of Columbia Bar has just issued two opinions on social media use.  Ethics Opinion 370 is available here.  Ethics Opinion 371 is available here.  The Legal Profession blog has a summary here.

Opinion 370, does not seem to add anything new.  It concludes that "a lawyer who chooses to maintain a presence on social media, for personal or professional reasons, must take affirmative steps to remain competent regarding the technology being used and to ensure compliance with the applicable Rules of Professional Conduct."

Opinion 371, on the other hand, provides more information and analysis in an attempt to provide  guidance about "advice and conduct by lawyers related to social media in the provision of legal services, including whether certain advice and conduct are required, permitted, or prohibited by the Rules."

One of my recent articles is now available online

My essay Through the Looking Glass in Indiana: Mandatory Reporting Child Abuse and the Duty of Confidentiality was recently published by Notre Dame and it is now available here.

Review of the state of the law on advanced conflicts waivers

IPethics & INsights has published two articles reviewing the current state of the law on advanced waivers.  Go here for part 1 and here for part 2.   Here is part of the introduction:

Some law firms try to avoid or limit their exposure to [conflicts of interests] by contracting with their clients to waive conflicts even before the facts giving rise to such conflicts are known either to the client or the law firm. Indeed, in large law firms that typically employ hundreds of lawyers in multiple offices around the globe, it is commonplace for their standard engagement agreements to include language in which the client agrees as part of the representation to waive in advance future conflicts of interest.

But are such “advanced waivers” ethical? It is one of the most vexing questions that has dogged law firms, regulators, and ethics counsel for years.

. . . . For lawyers who want a clear, definitive, black and white answer to the question of the legality and enforceability of advanced conflict waivers, unfortunately there is none. Ethics opinions and court rulings have created a patchwork of opinions. This lack of uniform treatment of advanced conflict waiver leads to unpredictability . . .  that most lawyers would rather avoid.